Find a Lawyer

(On appeal from the judgment, dated 8th October, 1985 of the Election Tribunal, Sind at Karachi in Election Petition No. 1 of 1985).

Per Nasim Hasan Shah, J.; Muhammad Afzal Zallah, J. agreeing‑

(a) Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977)--‑

---Art 10‑Representation of the Peoples Act (LXXXV of 1976), S. 116‑-Electoral. College Act (IV of 1964), S. 53‑Disqualification --Contract with Government Department ‑Disqualifying provision cannot be invoked to disqualify a person who has, in effect; ceased to retain any interest in a .contract with the Government Department and the possibility of his throwing his weight around to secure any personal benefit in that transaction, no longer exists.

A contract is an agreement between the two parties in which the terms and conditions are specified by which both parties are legally bound.

Any person who has a interest or share in a contract entered into with a Government Organisation will stand disqualified if the aforesaid share or interest in the said contract is still subsisting on the day when the election process gets underway. If a person has any share or interest in a contract for the supply of goods to, or for execution of any contract or the performance of any contract with the Government, he is disqualified from contesting the election. It will, therefore, have to be seen in each case whether the person sought to be disqualified did have a subsisting shale or interest in the performance of any contract, on the nomination day, with the Government

Even though strictly under laws of contract, a contract is to be deemed in law to lie still subsisting until all the obligations of the parties thereunder do not come to an end finally, however, such a strict and technical interpretation of the provisions of the Contract Act, 1872 are not necessary for interpreting the disqualification clause in the Election Laws. The purpose of this provision in this law is to ensure that no person, who has a subsisting interest in a contract with a Government Department, should become a member of the Assembly and thus be in a position to exercise undue 'influence over the said Government Department on account of his position as a member of the Legislature in a private transaction wherein he has a personal interest. Therefore, this clause cannot be invoked to disqualify a person who has, in effect, ceased to retain any interest in a contract with the Government Department and the possibility of his throwing his weight around to secure any personal benefit in that transaction, no longer exists. The very fact, that even after nearly two years of the issuance of the final completion certificate the Government has not found any cause for reopen ing any aspect of the said contract, shows that in point of fact the interests of both the parties have ended therein and none of then has any subsist ing live interest left therein.

The provisions of a penal statute, entitling forfeiture and deprivation of valuable rights of property and franchise have to be very strictly constru ed and in the case of doubt the benefit must go to the person against whom they are sought to he invoked. The rule is founded on the tenderness of the law for the rights of the individuals.

Courts must be very careful in construing statutory provisions imposing a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, Court must adopt that construction: Unless penalties are imposed in clear terms, they are not enforceable. Also, where various interpretations of a section are admissible, it is a strong reason against adopting particular interpretation if it shall appear that the result would be unreasonable or oppressive.

Khan Muhammad Yusuf Khan Khattak v. S. M Ayub and others P L D 1973 S C 160 and Tuck v. Priester 19 Q B D 629 ref.

Per Nasim Hasan Shah, J. ; Muhammad Afzal Zullah, J. agreeing ---

(b) Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977)-‑

--‑Art. 10‑Repesentation of the Peoples Act (LXXXV of 1976) S. 116‑Electoral College Act (IV of 1964), S. 53 Disqualification --Contract with Government Department ‑Legal repudiation has to be total, unequivocal and clear‑Wrongful repudiation in the absence of acceptance by other party leaves both parties with their rights and liabilities, as if no repudiation had taken place.

The returned candidate had entered into a contract with a Government Department in which he received payments for part of the work done by him (the last payment in this connection was received on 8‑8‑1984). On 9‑9‑1984, he appointed another person as a general attorney on his behalf 'and thereafter on 12‑8‑1984 he sent a letter to the Department to the effect that henceforth his Attorney would complete the contrasted work. Such an attempt by the contractor to wriggle out of his contractual obligations was not a legal by recognised mode of repudiating his obligations under the contract. The question of unilateral extensions was not of any significance and arose only collaterally.

The returned candidate continued to have an interest in the contract entered into by him with a Government Department pertaining to the con tract much beyond the nomination day and hence he was disqualified from being elected as a member of the Provincial Assembly.

Messrs A. C. Yusuf & Co. v. Messrs K. B. H. Habibullah & Co. P L D 1965 Kar. 374 ref:

Where a breach of the contract is committed by the promisor, the choice of the remedy does nut lie with him but lies with the person whose rights are infringed. This is on the principle that where one party to the contract decides to repudiate his obligations under the contract and does not wish to perform them, it is for the‑other party to accept or decline that offer or decision because the contract is not entirely abrogated by such a repudiation it only relatives the injured party of the duty of further fulfilling the obliga tions which he had undertaken in favaur of the repudiating party under the contract. In fact, a wrongful repudiation in the absence of acceptance by the other party leaves both of them with their rights and liabilities as if no repudiation had taken place.

Per Shafiur Rahman, J.

Muhammad Khan v. Syed Abdul Khaliq and others Civil Appeal No. 41 of 1986 and Syed Abdul Khaliq and others v. Muhammad Khan and others Civil Appeal No. 19 of 1986 ref.

Per Zaffar Hussain Mirza, J.

Muhammad Khan v. Syed Abdul Khaliq and others Civil Appeal No. 19 of 1986 ; Syed Abdul Khaliq and others v. Muhammad Khan and others Civil Appeal No. 41 of 1986 and Abdul Jalil Chaudhry v. Muhammadi Steamship Company Limited P L D 1961 S C 340 ref.

(c) Representation of the Peoples Act (LXXXV of 1976)-‑

‑‑ Ss. 67 (1) (c) & 116‑Decision of the Tribunal‑Where an Elec tion Tribunal finds that a candidate who secured a majority of votes was disqualified, but the fact of his disqualification was not notorious at the tune of polling so that voters could have taken notice of such disqualification ; votes secured by such candidate, cannot simply be thrown away so that the candidate securing next highest number of votes declared elected in his place‑Election in such a case as a whole must be set aside and a re‑election ordered.

Rashid Ahmad Rahmani v. Mirza Barkat Ali etc. P L D 1968 S C 301; Lal Muhammad v. Muhammad Usman and others 1975 S C M R 409 and Syed Saeed Hassan v. Pyar Ali and others P L D 1976 S C 6 ref.

Per Shafiur Rahman, J. ; Muhammad Haleem, C. J. agreeing----

(d) Houses of Parliament and Provincial Assemblies (Election) order (5 of 1977)‑

---Art. 10 (2) (b) (8)‑Disqualification‑Contract with Government Department‑Strict principles of law of contract do not control or govern the election disqualification contained in Art. 10 (2) (b) (8) which in applied on the strength of Art. 11 (2).

Per Zaffar Hussain Mirza, J

(e) Contract Act (IX of 1872)--

‑‑ S. 63‑Time for performance of a contract is liable to be extend ed by promisee ‑Consent of promisor is not needed for such exten sion, but that is essential for if the promisor was not prepared to give performance at all, any extension would be meaningless.

Abdul Jalil Chaudhary v. Muhammadi Steamship Company Limited P L D 1961 S C 340 ref.

Fakharuddin G. Ibrahim, Senior Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record for Appellant.

Khalid M. Ishaque, Senior Advocate Supreme Court and Nizam Ahmad, Advocate‑on‑Record (absent) for Respondent No. 1.

Respondents Nos. 2 and 3 : Ex parte.

Dates of hearing : 26tb February; 1st and 2nd March, 1986.

JUDGEMENT

NASIM HASAN SHAH, J

.‑This appeal under section 67(3) of the Repre sentation of the Peoples Act, 1976 (LXXX of 1976) is directed against the decision of the Judge/Election Tribunal dated 8‑10-1985 passed in Election Petition No. 1 of 1985.

The appellant (Mr. Junaid Ahmad Soomro) and the respondents (Haji Mehboob Ali Bhayo, Pir Mushtaq Mohyuddin Shah and Agha Abdul Hakim) were contesting candidates for a Muslim seat in the Sind Provincial Assembly bearing No. PS.7, Shikarpur‑I. Nomination papers in this connection were submitted on 23‑1‑1985 by the contesting candidates which were accepted without any objection and polling took place on 28‑2‑1985.

Mr. Junaid Ahmad Soomro (appellant herein) secured the highest number of votes i. e. 16195 while Haji Mehboob Ali. Bhayo, respondent No. 1. secured the second highest votes vie. 12861, Pir Mustaq Mohyuddin Shah, respondent No. 2, secured 1341 votes and Agha Abdul Hakim, respondent No. 3, secured only 170 votes. Thus, Mr. Junaid Ahmad Soomro, appellant, was declared as, having been duly elected from the constituency in question.

The election of the appellant; however, was challenged by Haji Mehboob Ali Bhayo, respondent No. 1, by filing an election petition under section 52 of the Representation of the Peoples Act, 1976. Herein he alleged that the appellant was an approved Government contractor in Class B' and held' two contracts from the Provincial Government in connection with the construction of two road, namely, (i) Garhi Yasin- Ruk Road measuring 6/7 miles and (ii) Shikarpur Rustom Road measuring 3/4 miles and that on the day of nomination he had subsisting interest in both these contracts. Accordingly, he was disqualified from being a member of the Provincial Assembly under Article 11 (2) of the Houses of Parliament and Provincial Assemblies (Election Order), 1977. In the election petition, it was further alleged that although the construction of Garhi Yasin‑Ruk Road (subject‑matter of the first contract) was completed but the accounts were not settled and full payment was not made by the nomination day. Hence, the appellant still had a subsisting interest in the contract on the date of nomination as a candidate. So far as the second contract namely, the contract for construction of Shikarpur Rustom Road was concerned, the contractor did not complete the construction of the said road and the period of performance of the contract was extended from time to time and was lastly extended upto 4‑3‑1985 i. e. far beyond the date on which nomination papers were filed vie‑ 23‑1‑1985.

In his written statement, the appellant admitted that he was enlisted as an approved contractor but this was only for the year 1982 and he neither applied for renewal of his enlistment nor was it renewed beyond that year by the Department. Coming to the first contract, namely, the contract for construction of a portion of Garhi Yasin-Ruk Road, the appellant submitted that it was awarded to him on 1‑10‑1982 which was duly completed and fully performed in June, 1983 and final payment was received by him in this behalf on 12‑6‑1983: He had no interest whatsoever left in the said contract on the nomination day (i. e. 23‑1‑1985). As for the second contract relating to the construction of the Shikarpur Rustom Road, the position taken up by the appellant was that this contract was awarded to him on 3‑5‑1983 and the work was to be completed by 5-1‑1984 ; that the work could not be completed when the period of the contract expired on 5‑1‑1984. He, however, did some further work until 8‑8‑1984 when be received the last payment of Rs. 23,106 for the work done by him till then and thereafter abandoned the contract and by his letter dated 12‑8‑1984 he confirmed his doing so. He, thereafter, neither worked on, the contract nor claimed anything in respect thereof. Accordingly, he had no interest in this contract either on the day of nomination.

The appellant also submitted that even if he had not contested the election, respondent No. 1 could not have got elected and‑furthermore that the plea raised by respondent No. 1 about his being a Government contractor on the day of nomination was an afterthought because he neither objected to his nomination paper nor filed any appeal against its acceptance.

By the consent of the parties, the learned Judge presiding over the Election Tribunal framed only one issues to the effect whether or not on the nomination day the appellant held contracts with the High Ay Department of Sind and thus was disqualified from being elected as member of the Provincial Assembly.

During the trial of the petition, the respondent No. 1 examined himself and one Mr. Neezar Ali Khawaja, the concerned Executive Engineer, who produced the relevant' documents concerning the above mentioned tyro contracts and was also himself examined and cross‑examined at some length. In his defence, the appellant examined himself only.

The learned Judge/Election Tribunal, who ultimately decided the case (Mr. Justice Sajjad Ali Shah), came to the conclusion, after discussing the relevant evidence And the submissions of the learned counsel of the parties that the contract granted to the appellant were still subsisting at the tithe of filing of the nomination papers and, therefore, he was disqualified from contesting the election ; the accounts, so far as the first contract (relating to the construction of Garhi Yasin Ruk Road) was concerned, had not yet been finalized ; and so far as the second contract (relating to the construction of Shikarpur Rustom Road) was concerned, the work was still incomplete arid extensions were being granted for completing it from time to time by the Department.

Coming to the plea of the appellant that he had "abandoned the contract" and had no subsisting interest in it at the time of filing of nomination paper, the learned Judge aid that according to the appellant he had authorised Mr. Niaz Ahmad to act as his Attorney to execute the remaining work of the contract But, the perusal of the aforesaid document (Exh. P/4) revealed that the intention only was to appoint Mr. Niaz Ahmad as his Agent who was to act on his behalf to finalize the above work. Moreover, the contract between the parties could not have been terminated so easily. A contract is an agreement between the two parties in which the terms and conditions are specified by which both parties are legally bound. In the instant contract the parties were bound by the conditions of the contract. Clause 2 of the conditions of contract provides that time allowed for carrying out the work is the "essence of the contract on the part of the contractor" and if the work is not carried out within the stipulated time, the Contractor shall pay as compensation an amount equal to one per cent or such smaller amount as the Superintending Engineer may decide. Abandonment of work is dealt with in clause 3: According to this clause work can be abandoned owing to the serious illness or death of the contractor or any other causing The Executive Engineer has been authorised to rescind the contract or to employ labour paid by the Public Works Department and to supply materials to carry out the work or to measure up the work of the contractor and to take such part thereof as shall be unexecuted out of his bands and to give it to another contractor to complete it and in such circumstances expenses incurred would be paid by the original contractor. It is further provided in Clause 3 that in such eventuality, the contractor shall have no claim to compensation for any loss suffered by him and in case the contract is rescinded the contractor shall not be entitled to recover arty stun for the work actually performed by him unless and until the Executive Engineer certified in writing. Clause 6 authorises the Executive Engineer to grant extension at any time before the date of completion on his own initiative as he may think necessary or proper. Clause 7 provides that contractor shall be furnished with a certificate of completion of work by the Executive Engineer and further that such certificate shall not be given if the work is incomplete. Clause 18 provides that work would be open to inspection and contractor or his responsible agent is required to be present when the work is inspected. Clause 26 requires that work is not to be sublet and if the contractor attempts to do so, the contract can be rescinded by the Engineer Incharge resulting in forfeiture of security deposit. The last clause in the contract is clause 48 which provides :‑

"Certified that no member of Legislative Assembly is in partnership with me and that Government will have the right to terminate the contract at any stage if it is discovered that a member of Legislative Assembly is a partner in the contract."

The learned Judge further said that, in view of the above conditions of the contract; the appellant could not, if the department did not agree to the abandonment of the contract, end it unilaterally. In this case, the contract was extended by the Department from time to time and the last extension granted by the Department showed that it had extended the time limit upto 4‑3‑1985 (vide letter Exh. P/7). These extensions were granted tinder clauses 2 and 6 of the Agreement. It is true that tile Executive Engineer vide his letter dated 6‑3‑1985 addressed to the appellant' informed him that the contract regarding construction of Shikarpur Rustom Road was rescinded under clause 3‑A of the Agreement and further that security deposit including earnest money were forfeited to Government. But this was done on 6‑3‑198: and the date of filing of nomination papers was 23‑1‑1985.

The learned Judge, on the above view of the matter, came to the conclusion that both the contracts were subsisting on the date when nomination papers were filed. He, therefore, held that the appellant stood disqualified when the nomination papers were filed. The election petition was allowed ; the appellant unseated and respondent No. 1 declared elected in his place having secured the highest votes after him and he was found to have won the election relating to the constituency mentioned above vide decision announced on 8‑10‑1985.

In this appeal directed against the aforementioned, decision, Mr. Fakharuddin G. Ebrahim, learned counsel for the appellant has submitted before us that so far as the first contract was concerned, the work order in this connection was issued on 1‑10‑1982 and the time allowed for completion of the Work visualised thereunder was 8 months. The work actually started on 5‑10‑1982 and, thus is had to be completed by 5‑6‑1983 but on account of shortage bitumen some extension In the time was allowed (free of fine) for its completion and the time limit extended upto 30‑6‑1983. According the evidence of Mr. Neezar Ali Khawaja, the Executive Engineer the work was completed shortly thereafter on 12‑6‑1983 and final payment of Rs. 23,261 was also received on that very day (12‑6‑1983). The comple tion certificate, as envisaged in clause 7 of the Contract Agreement, was also duly issued by the Engineer Incharge and, therefore, so far as the first contract was concerned it stood fully and finally performed by 12‑6‑1983. He also pointed out that not a single letter was ever addressed to the Contractor thereafter making any demand or claim with respect to this contract. Hence he had no subsisting interest in the said contract on the nomination day (23‑9‑1985).

So far as the second contract .is concerned, the work order was issued on 3‑5‑1983 and time allowed for completion of the work was six months i. e. it was to be completed by 4‑11‑1983. The case of the appellant is that the time for completion of this contract was never extended in terms provided for in the contract, namely, clause 6. The time being essence of the contract this contract in law came to an end on 4‑11‑1983. Without prejudice to the above plea, Mr. Fakhruddin also argued in the alternative that this contract could at best be said to be subsisting until 12‑8‑1984 when the appellant informed the Department that he had no further interest in the work visualized thereunder. But emphasized that his principal argument was that the contract came to end on 4‑11‑1983 as no extension in terms provided for in the contract was obtained or granted by any of the parties and furthermore, the conduct of the parties too could not extend time. It was also submitted that any extension granted after 12‑8‑1984 would not only tie a "unilateral extension" and contrary to any express term of the contract, but inconsequential even otherwise for the appellant had rightly or wrongly ended the co tract on 12‑8‑1984. So far as extension granted by the department on 10‑9‑1984 upto 4‑10‑1984 was concerned it was submitted that this extension was of no consequence, for the reasons already mentioned. The department had finally called upon the appellant on 1‑10‑1984 to resume the work within 10 days. Admittedly, the appellant did not resume the work at all because there was no occasion to resume it in so far as he had already abandoned the work on 12‑8‑1984. Moreover, after the department bad finally called upon the appellant on 1‑10‑1984 to resume the work within ten days it was very surprising that the department by another letter dated 4‑10‑1984 again extended the time up to 5th March, 1985. This extension too like the previous extensions being unilateral and not in terms of the contract and expressly made to keep the penal clause of the contract alive, was of no legal consequence as it was made after the abandonment of the contract by the appellant.

According to Mr. Fakhruddin G. Ebrahim, the department had after the abandonment of the contract as per clause 3, only three alternatives :‑

(a) To rescind the contract ;

(6) To carry out the work departmentally, or

(c) To award the remaining work to a third party, at the risk and, cost of the contractor.

And there was no scope for extending timer for performance of the contract. But the Department instead of exercising any one of the three options or assuming that the letter of the appellant dated 12‑8‑1984 amounted to repudiation of contract and proceeding to rescind it under section 55 of the Contract Act had proceeded to rescind the contract under clause 3(a) of the Agreement and forfeited the security deposit including earnest money by its letter dated 6‑3‑1985. Moreover, the Department was not at liberty to do so at its own sweet will but could only have done so within a "reasonable time". In this connection, the learned counsel referred to section 66 of the Contract Act and clause (b) of section 6 of the same Act which lays down that if no time is prescribed for revocation this can be done after lapse of a "reasonable time'. In the present case,' the option of rescission was not exercised for 7 long months considering that the original period of the contract itself was only six months. The fright of rescissions in the circumstances, should have been exercised at best within a week or two of the receipt of the appellant's letter dated 12‑8‑1984. In this way, the contract should be deemed to have come to an end at the most around 30‑8‑1984. In this view of the matter, the letter rescind ing the contract must be deemed to have taken effect much before 23‑1‑1985 (the day of filing of nomination papers) and in such a situation the question of any contract subsisting on the nomination day would not arise nor the question of any disqualification ensure. The maxim that a party should not be made to suffer for the in‑action on the part of the other side is pressed in aid by the learned counsel for the appellant in support of the above plea.

In short, the submissions pressed on behalf of the appellant are that the contract came to an end firstly on 4‑11‑1983 by virtue of the clause of the contract itself which makes time the essence of contract and there being no clause in the contract itself allowing extension therein; secondly and alternatively, the contract came to an end on 12‑8‑1984 when the appellant abandoned it and at any rate it should be deemed to have come to an end, after the lapse of a reasonable time on the receipt of the appel lant's letter dated 12‑8‑1984 abandoning the work.

It is to be observed that the disqualification on account of a candidate being a Government contractor is of recent origin. It was for the first in the Representation of the Peoples Act, 1957, enacted under the 195 6 Constitution that a provision, namely, section 99, was made in this behalf, which was to the following effect:‑

"99. Disqualifications.

‑(1) A person shall be disqualified from being elected as and from being a member of an Assembly, if‑

(a) . . . . . . . . .

(b) . . . . . . . . .

(c) . . . . . . . . .

(d) . . . . . . . . .

(e) . . . . . . . . .

(f) . . . . . . . . .

(g) . . . . . . . . .

(b) having whether by himself or, by any person in trust for him or for his benefit or on his account‑ any share or interest in a contract for‑

(i) the supply of goods to, or

(ii) the execution of any work, or

(iii) the performance of any service, undertaken by the Government or a local authority or an autonomous body in which the Govern ment has a controlling share or interest he does not, after his election as a member but before making oath, as such, make a declaration in writing to, the Commissioner that he has such share or interest, unless a period of five years has elapsed since his failure to do so."

After the abrogation of the 1956‑Constitution and the promulga tion of the 1962‑Constitution, we find that in the Electoral College Act, 1964, a somewhat similar provision was inserted in its 53rd section, namely,‑‑

"53. 'Disqualification etc.‑(1) A person shall be disqualified from being, or being elected as, a member of the Electoral. College for any electoral unit if ‑

(a) . . . . . . . . .

(b) . . . . . . . . .

(c) . . . . . . . . .

(d) . . . . . . . . .

(e) . . . . . . . . .

(f) he is a party to a contract for work to be done for, or goods to be supplied to a Union Council or a Town or Union Committee within whose jurisdiction such electoral .unit is situated, or has otherwise any pecuniary interest in such Council or Committee."

The 1962 Constitution disappeared with the Second Martial Law of 1969 and a Legal Framework. Order was promulgated in 1970. Here in, this disqualification was maintained and it provided for it in a somewhat different language in section 9 thereof. This section reads as follows: ‑

"9. Qualification and disqualifications for being a member.‑(1) A person shall, subject to the provisions of clause (2), be qualified to be elected as, and to be, a member if‑

(a) . . . . . . . . .

(b) . . . . . . . . .

(c) . . . . . . . . .

(d) . . . . . . . . .

(e) . . . . . . . . .

(f) . . . . . . . . .

(g) . . . . . . . . .

(h) he, whether by himself or y any person or body of persons in trust for him or for his benefit or on his account or 'as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co‑operative society and Govern ment, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by Govern ment:

Provided that the disqualification under sub‑clause (h) shall not apply to a person‑

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him or such longer period as the President may, in any particular case, allow; or

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Act, 1913, (VII of 1913) of which he is a share‑holder but is neither a director holding an office of profit under the company nor a managing agent; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any Ether member of that family in the course of carrying on a separate business in which be has no share or interest."

In 1973, a new Constitution was enacted and the Representation of the Peoples Act, 1976, enacted by the National Assembly of Pakistan created thereunder, provided in its, 16th section as follows:‑

"116.‑(1) Subject to the other provisions of this section; a person shall be disqualified for being elected or being a member of the National Assembly or a Provincial Assembly if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, be has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the Government.

(2) A disqualification under subsection (1) shall not, where the share or interest in the contract devolves on a person by inheritance or succession by as a legatee, executor of administrator, take effect until the expiration of six months after it has so devolved on him of such longer period as the Election Commission may in any particular case allow.

(3) A person shall not be disqualified under subsection (1) by reason of his having a share or interest in a contract entered into between the Government and a public company, as defined in section 2 of the Companies Act, 1913, (VII of 1913), of which he is a shareholder but is neither a director holding an office of profit under the company nor a managing agent.

(4) Nothing in subsection (1) shall extend to a contract entered into between a co‑operative society and the Government.

(5) . . . . . . .

The disqualification with which we are presently concerned is contained in section 10 of the Houses o‑f Parliament and Provincial Assemblies (Elec tions) Order, 1977, promulgated after the imposition of the Third Martial Law. It provides, to the extent relevant, as follows :‑

"Section 10. Qualification and disqualification for membership of Parlia ment.‑(1) . . . . . . . .

(2). A person shall be disqualified from being elected or chosen as, and from being, a member of parliament:

(a) . . . . . . . . .

(b) if:-

(1) . . . . . . . . .

(2) . . . . . . . . .

(3) . . . . . . . . .

(4) . . . . . . . . .

(5) . . . . . . . . .

(6) . . . . . . . . .

(7) . . . . . . . . .

(8) (if) he, whether by himself or by any person or body of persons u trust for trim or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being 'a contract between a co‑operative society and Govern ment for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by Govern ment:

Provided that the, disqualification under this paragraph shall not apply to a person ‑

(i) where the share or interest in the contract devolve on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him or such longer period as the President may, in any particular case allow; or

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Act, 1913, (VII of 1913) of which he is a shareholder but is neither a director ,holding an office of profit under the company nor a managing agent; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest."

The common strain running throughout in all these provisions is that any person who has an interest or share in a contract entered into with a Government Organisation will stand disqualified if the aforesaid share or interest in the said contract is still subsisting on the day when the election process gets underway. The law as it stands today thus is that if a person has any share or interest in a contract for the supply of goods to, or for the execution of any contract or the performance of a contract with the Government, he is disqualified from contesting the election. It will, therefore, have 'to be seen in each case whether the person sought to. be disqualified did have a 'subsisting share or interest in the performance of any contract, on the nomination day, with the Government

In this case, I note that the appellant had completely performed the first contract by 12‑6‑1983 and the full amount payable in. respect of this contract by the Government to him was also duly paid on 12‑6‑1983. The completion certificate, as envisaged by clause 7 of the contract agreement, also stood issued by the Engineer Incharge and it is an un controverted fact that not even a single letter has ever been addressed by the Department to him making any complaint, demand or claim with respect to this contract. It is true that the final settlement of accounts has not taken place but that appears to be due to the in‑action of the Department. Even though strictly under laws of contract, a contract is to be deemed in law to be still subsisting until all the obligations of the parties thereunder do not come to an end finally. However, in my view such a strict and technical interpretation of the provisions of the Contract Act are not necessary for interpreting the disqualification clause in the Election Laws. The purpose of this provision in this law is to ensure that no person, who has a subsisting interest in a contract with a Government Department, should become a member of the Assembly and thus be in position to exercise undue influence over the said Government Department on account of his position as a member of the legislature in a private transaction wherein he has a personal interest. In my opinion, therefore this clause cannot be invoked to disqualify a person who has, in effect ceased to retain any interest in a contract with the Government Department and the possibility of his throwing his weight around to secure any personal benefit in that transaction, no longer exists. The very fact, that even after nearly two years of the issuance of the final completion certificate the Government has not found any cause for reopening any aspect of the said contract, shows that in point of fact the interests of both the parties have ended therein and none of them has any subsisting live interest left therein. It will be useful to reproduce hereunder to following observations of this Court in the case of Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and others (P L D 1973 S C 160), appearing at page 196):‑

"It is well‑settled that the provisions of a penal statute, such as contained in clause 2(h) of the Legal Framework Order, 1970 entitling forfeiture and deprivation of valuable rights of property and franchise have to be very strictly construed and in the case of doubt the benefit must go to the person against whom they are sought to be invoked. The rule is founded on the tenderness of the law for the rights of the individuals. As observed by Lord Usher M. R. in Tuck v. Priester 19 Q. B. D. 629 with reference to section 6 of the Copyright Act of 1962:

We must be very careful in construing that section because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construc tion'."

unless penalties are imposed in clear terms, they are not enforceable. Also, where various interpretations of a section are admissible, it is a strong reason against adopting particular interpretation if it shall appear that the result would be unreasonable or oppressive."

We may now turn to the second contract with a view to ascertaining if it was still subsisting on the nomination day In order to establish that this contract too was not subsisting on that day, the appellant has taken alternative pleas. In the ‑first place he asserts that this contract came to an end on 4‑11‑1983 i. e. on the expiry of the six month's period provided for its completion. In the alternative it is asserted that it had definitely come to au end on 12‑8‑1984 when the appellant "abandoned the work" and although the Department was granting him extensions for completing the work, these were of no avail as they were unilateral acts and, therefore, inconsequential. And in any event the contract was itself rescinded by the Department under clause 3 of the Agreement. Even though this was done on 6‑3‑1985 but this date could be ignored because it was not within a "reasonable time" and the Court could itself hold that the "reasonable time" for rescinding the contract, after appellant's intention of abandoning the work on 12‑8‑1984 was communicated could not have been more than two or three weeks with the result that the rescission of the contract must be deemed to have occurred around 30‑8‑1984, which was much before the nomination day.

Mr. Khalid M. Ishaque, learned counsel for respondent No. 1 has urged that none of these pleas have any substance. So far as the plea that the contract had come to an end on 4‑11‑1983 is concerned, this is contradicted by the appellant's conduct in continuing work on the contract till b‑8‑1984 and receiving part payment amounting to Rs. 23,106 on that day. As for the abandonment of the contract through the letter dated 12‑8‑1984 is concerned, Mr. Khalid Ishaque pointed out that a perusal of the said letter showed that it did not amount to a clear repudiation of the contract. On the other hand, it was only to the effect that be (the appellant) had authorised Mr. Niaz Ahmad through his affidavit dated 9‑8‑1984 to complete the above said works on his own because he could not complete the work. This statement, in the letter, could snot be construed as a repudiation of the contract. A repudiation in law has to be total, unequivocal and clear. These tests are not satisfied by the terms of the letter dated 12‑8‑1984. The subject‑matter of the above letter shows that it deals with "Shikarpur‑Rustom Road, Mile 3/0 to 4/0 and Ruk‑Garhi Yasin Road, Mile 6/0 to 7/4". Thus, while the letter purports to relate to both the contracts, in the arguments raised before the Court it is being relied upon only with regard to the second contract pertaining to "Shikarpur‑Rustom Road". Furthermore, the letter refers to the affidavit of 9th August, 1984. A perusal of this, however, shows that the appellant has appointed Mr. Niaz Ahmad to act on his behalf in respect of both of his contracts.

Mr. Khalid M. Ishaque further submitted that the word "interest" in sub‑clause (8) of clause (b) of Article 10(2) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, was a word of wide import and visualized both the monetary compensation which a contractor is likely to receive on fulfilment of the contract and also envisages the other consequence of losses or liabilities he is likely to suffer or incur in case of his failure to perform the contract. Thus, if the relationship between the parties is such that the Department can receive damages or compensa tion from the contractor for failure to comply with the terms of the contract and so long as this possibility exists this situation implies that some "interest" of a party in the contract is "subsisting" therein.

In the present case, the appellant bad entered into a contract with a Government Department in which he received payments for part of the work done by him (the last payment in this connection was received on 8‑8‑1984). On 9‑9‑1984, he appointed Mr. Niaz Ahmad as a general attorney on his behalf and thereafter on 12‑8‑1984 he sent a letter to the Department to the effect that henceforth his Attorney would complete the contracted work. Such an attempt by the contractor the appellant herein to wriggle out of his contractual obligations was not a legal or recognised mode of repudiating his obligations under the contract. On this view of the matter the question of unilateral extensions was not of any significance and arose only collaterally.

I find force in these submissions. The law is that where a breach of the contract is committed by the promisor, the choice of the remedy does not lie with him but lies with the person whose rights are infringed.' This is on the principle that where one party to the contract decides to repuidate his obligations under the contract and does not wish to perform them it is for the other party to accept or decline that offer or decision because the contract is not entirely abrogated by such a repudiation; it only relieves the injured party of the duty of further fulfilling the obliga tions which he had undertaken in favour of the repudiating party under the contract. In fact, the Courts of our country have already laid down that a wrongful repudiation in the absence of acceptance by the other party leaves both of them with their rights and liabilities as if no repudiation had taken place; see Messrs A. C. Yusuf & Co. v. Messrs K. B. Habibullah & Co. (P L D 1965 Kar. 374).

The plea of the learned counsel for the appellant that the rescission of the contract on 6‑3‑1985 by the Department not being within a "reasonable time" hence the Court should itself hold that the rescission should be deemed to have occurred around 30‑8‑1984, cannot be accepted. The perusal of the correspondence between the parties and the other attending circumstances shows that the Department was trying very hard to get the work done through the contractor who bad voluntarily agreed to do this work (viz. the appellant). It was only when it became manifest that this was not possible that it decided to rescind the contract. I agree, therefore, with the learned Judge/Election Tribunal that the appellant continued to I have an interest in the contract entered into by him with a Government Department pertaining to the Shikarpur‑Rustom Road much beyond the nomination day and hence he was disqualified from being elected as al member of the Provincial Assembly.

This brings me to the ultimate order which should be made is the present case, to the light of all tile facts and circumstances thereof, which have been recounted above. The learned Judge/Election Tribunal has held that as the appellant stood disqualified on the day when the nomination papers were filed (for the reason that he was, at that time, a Government contractor) and, therefore, he stood unseated. He has declared respondent No. 1, who had secured the highest votes after him to have won the elec tion relating to the constituency in question.

The provision of law which deals with this matter is contained in section 67 of the Representation of the Peoples Act, 1976. This, to the relevant extent, reads as follows :‑

"67. Decision of the Tribunal.‑(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order‑

(a) dismissing the petition;

(b) declaring the election of the returned candidate to be void;

(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or

(d) declaring the election as a whole to be void.

The Election Tribunal appears to have acted under clause (c) of clause (1) of section 67 in this case and accordingly declared the election of the returned candidate to be void and found respondent No. 1 to have been duly elected in his place. The question, however, which arises is whether the Tribunal was right in having acted under this clause in the facts and circumstances of this case

In this connection, I find that there is no evidence on record to indicate that the disqualification of the appellant was notorious or even known to the voters and that despite knowledge of the aforesaid disqualification they had proceeded deliberately and perversely to vote in his favour wherefore they could be held to have "thrown away their votes". On the other hand the evidence shows that the appellant had ceased all the work on the Government contracts quite sometime before the nomination day and ostensibly had no interest left in them. Even respondent No. 1 did not chall enge the validity of his nomination papers on the ground that he was dis qualified on the basis of being a Government contractor. This Court has, in a series of cases, consistently held that where an Election Tribunal finds that a candidate who secured a majority of votes was disqualified, but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of this disqualification; the votes secured by such a candidate cannot simply be thrown away so that the candidate securing the next highest number of votes declared elected in his place. According to the decisions of this Court in such a situation the election as a whole must be set a side and a re‑election ordered. See Rashid Ahmad Rahmani v. Mirza Burkat Ali etc. (P L D 1968 S C 301), Lal Muhammad v. Muhammad Usman and others (1975 S C M R 409), and dyed Saeed Hassan v. Pyar Ali and others (P L D 1976 S C 6). The dictum in these cases is fully attracted in the facts and circumstances of this case and, therefore, the Tribunal was wrong in basing itself on clause (c) of subsection (1) of section 67.

The result is that this appeal succeeds to the extent that the decision of the Judge/Election Tribunal that the appellant was disqualified from contesting the election under section 10(2)(8) is correct and the declara tion to the effect that this election is void, is upheld. However, the other part of the declaration of the Tribunal that respondent No. 1 stands duly elected in place of the appellant is found to be erroneous and is, therefore, set aside.

The upshot is that I would substitute the declaration of the learned Judge/Election Tribunal in the terms that the election of Mr. Junaid Ahmad Soomro, the returned candidate, is declared to be void on the ground that he was disqualified under section 10(2)(8) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977, and further declare that a re‑election shall be held in the constituency. The result is that elections must now be held afresh to fill the Muslim seat of the Provincial Assembly of Sind bearing No. PS‑7 Shikarpur‑I.

Since the success is, to some extent, divided I would leave the parties to bear their own costs.

MUHAMMAD AFZAL ZULLAH, J

.‑I agree with my learned brother Nasim Hasan Shah, J.

SHAFIUR RAHMAN, J

.‑I have perused with great care and attention the draft judgment prepared by my learned brother (Mr. Justice Nasim Hasan Shah). I agree fully with the conclusions recorded therein that (i) strict principles of law of contract do not control or govern the election disqualification contained in Article 10 (2) (b) (8) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 which is applied on the strength of Article 11 (2) (ibid) (ii) the contract relating to construction of Garhi Yasin‑Ruk Road having been performed was neither subsisting nor disqualified the appellate on the crucial date from filing his nonmina tion paper and contesting the elections. As regards the subsistence of the Shikarpur Rustum Road I have a different view and my reasons for having it are recorded hereunder‑Clause (3) of that contract provided as hereunder‑

Clause 3.‑In any case in which under any clause 'or clauses of this contract the contractors shall have rendered himself liable to pay compensation amounting to the whole of his security deposit whether paid in one sum or deducted by instalments or in the case of abandonment of the work owing to the serious illness or death of the contractor or any other cause, the Executive Engineer on behalf of the Governor of Sind shall have power to adopt any of the following courses, as he may deem best suited to the interests of Government.

(a) to rescind the contract (of which rescission notice in writing to the contractor under the hand of the Executive Engineer shall be conclusive evidence) and in That case the Security deposit of the contractor shall stand forfeited and be absolutely at the disposal of Government.

(b) To employ labour paid by the Public Works Department and to supply materials to carry out the work, or any part of the work, debiting the contractor with the cost of the labour and the price of the materials (as to the correctness of which cost and price the certificate of the Executive Engineer shall be final and conclusive against the contractor) and crediting him with the value of the work, done, in all respects in the same manner and at the same rates as if it had been carried out by the contractor under the terms of his contractor; and in that case the certificate of the Executive Engineer as to the value of the work done shall be final and conclusive against the contractor. ‑

(c) To measure up the work of the contractor and to take such part thereof as shall be unexecuted out of the hands, and to give it to another contractor to complete it, in which case any expenses which may be incurred in excess of the sum which would have been paid to the original contractor if the whole work had been executed by him (as to the amount of which excess expenses the certificates in writing of the Executive Engineer shall be final and conclusive) shall be borne and paid by the original contractor and shall be deducted from any money due to him by Government under the contract or otherwise or from him security deposit or the proceeds of sale thereof, or a sufficient part thereof.

In the event of any of the above courses being adopted by the Executive Engineer, the contractor shall have no claim to compensation for any loss sustained by him by reason of his having purchased or procured any materials, or entered into any engagements, or made any advances on account of or, with a view of the execution of the work or the performance of the contract. And in case the contract shall be rescinded under the provision aforesaid, the contractor shall not be entitled to recover or be paid any sum for any work, therefore, actually performed by him under this contract unless and until the Executive Engineer shall have certified in writing the performance of such work and the amount payable in respect thereof, and be shall only be entitled to be paid the amount so certified.

The power of attorney executed by the appellant on 9-8-1984 reads as follows:-

GENERAL POWER OF ATTORNEY

That, I Junaid Ahmed son of Hyder Bux by caste Soomro aged about 29 years, resident of Hathi Gate, Punjpeer Shikarpur Sind nominate, constitute and empower Mr. Niaz Ahmed Bhayo son of Haji Ali Murad Bhayo, resident of Village Karan, Taluka Shikarpur, District Shikarpur to act on my behalf as I have no further interest to work as Government Contractor. The detail are as follows‑

(1) That I am busy in my other personal works, hence I am unable to appear in different offices, concerning my works with Highways Department, Sukkur Circle.

(2) That the above said Attorney will receive all cheques payments in respect of the Two Work Orders namely Ruk‑Gharhiyasin Road mile 6‑0 to 7‑4 and having E. Highways No. TC/C‑55/657 dated 1‑10‑1983 and Shikarpur Rustum Road mile 3‑0 to 4‑0 and having E. Highways 'No. TC/G‑55/745 dated 3‑5‑1983.

(3) That the said attorney will be authorised to deposit the money and withdraw the same with his signature in connection with the matters pertaining to the said Government Contract and to refer the matter to any arbitrator for amicable settlement or any other Department.

(4) That the said Attorney shall be authorised to engage any counsel/Advocate, agent etc. for pleading the case if any and to sign the Vakalatnama, to swear Affidavits, and to verify the statement.

(5) That anything concerning the Contracts i. e. acts, deed3 done by the said Attorney under the due course of law shall be considered to be final.

(6) That the said Attorney deco has been executed by me without any force as he is my friend and well‑wisher and has been empowered with my free will and consent, moreover I will have no concern with the above said works of Highways Department Sukkur Circle as I have no intentions to work as Government Contractor anymore and the said Attorney will finalise the above said works.

Verified and Signed at Sukkur on this day of August, 1984.

It was followed by his letter dated 12‑8‑1984 addressed to the Executive Engineer Highway Division, Sukkur, the contracting party as hereunder‑

Subject: Shikarpur‑Rustum Road, Mile 3/0 to 4/0 and Ruk‑Garhi Yasin Road Mile 6/0 to 7/4.

Sir,

I had authorised Niaz Ahmed son of Ali Murad through my affidavit dated 9th August, 1984 to complete the above said works on his own, reason being that I could not complete the work.

I have already received the payments for the work done, and I have no further interest to work as a contractor any more.

I will be thankful if you will make necessary arrangements to finalize the contracts.

Thanking You.

Yours sincerely

Dated 12‑8‑1984. (Sd.) (Junaid Soomro)

The features to be noted in the last two documents are that he made it clear to the other contracting party that "I have no further interest to work as contractor any more" and referred to the power of attorney in which be had authorised "to complete the above said work on his own". In the General Power of Attorney he authorised him "to act on my behalf as I have no further interest to work as Government contractor" and further that "I will have no concern with the above said works of Highway Department Sukkur Circle as I have no intentions to work as Government contractor anymore and the said Attorney will finalise the above said works". The Executive Engineer who was, the contracting party while in the witness‑box admitted as follows‑

The power of attorney Exh. P. 4 was received in my office on 11‑8‑1984 It is correct that I received an application dated 12‑8‑1984 from respondent No. 1, intimating me that he had no further interest in the two Contracts aforesaid. I produce an attested copy thereof as Exh. R‑1 /F."

The Executive Engineer by his letter dated 6‑3‑1985 rescinded the contract under clause 3 (a) of agreement and in communicating so men tioned the following fact‑

As you have absolutely failed to complete the above work which has been abandoned since long within the extended period and you are showing no interest in complying the instructions as such undersigned having no other alternate except to rescind your contract."

On these admitted facts and the view that I have taken of the lawn governing disqualification in Muhammad Khan v. Syed Abdul Khaliq and others Civil Appeal No. 19 of 1986 and Syed Abdul Khaliq and others v. Muhammad Khan and others Civil Appeal No. 41 of 1986. I am of the opinion that the appellant suffered no disqualification on the date of the nomination paper as he had repudiated the contract and there was no alternative for the Executive Engineer except, to proceed thereafter under clause 3 within reasonable time leaving with him no power to grant extension for the purposes of performance of the contract after such, repudiation. After such a repudiation abandonment of the contract by the appellant, he was left with no share or interest, direct or indirect in a contract for the execution of the contract. His subsisting interest thereafter was confined to finalization of rights and obligations arising e.g. settlement of account, consequent upon repudiation or abandonment of contract. His appeal, therefore, according to me, should be allowed and the decision of the Election Tribunal set aside, dismissing thereby the Election Petition filed by the respondent.

MUHAMMAD HALEEM, C. J.

‑I agree with my brother Shafiur Rahman, J.

Civil Appeal No. 197 of 1985

ZAFFAR HUSSAIN MIRZA, J.

‑I have bad the privilege of perusing the draft judgment prepared by my learned brother Mr. Justice Dr. Nasim Hassan Shah and the dissenting opinion of my brother Mr. Justice Shafiur Rahman. After carefully considering these, with utmost respect I am unable to agree with the view taken by my learned brother Mr. Justice Nasim Hassan Shah and agree fully with the conclusions arrived at by my learned brother Mr. Justice Shafiur Rahman. So far as the first contract relating to construction of Garhi Yasin Ruk Road is concerned I am fully in agreement with the concurrent view of my learned brothers. As regards the subsistence of the contract relating to Shikarpur Rustam Road the reasons that have prevailed with my learned brother Mr. Justice Shafiur Rahman are in my view if I may say so with respect, fully in consonance with the principles of interpretation of the law governing the controversy in this case as laid down by this Court in Muhammad Khan v. Syed Abdul Khaliq and others Civil Appeal No. 19 of 1986 are Syed Abdul Khaliq and others v. Muhammad Khan and others Civil Appeal No. 41 of 1986.

I may add further that even if the provisions of the Contract Act are applied to the facts of this case, the result would be that the contract in question was not subsisting on the crucial date when the nomination papers were filed by the parties. As the evidence reveals the work in question, in terms of the original stipulations of the contract as to be completed by 4th November, 1983 but could not be completed by the appellant within time. Therefore, the time for the completion of the work was extended from time to time. It was contended on behalf of the appellant that the Government was not entitled to keep the contract alive by unilaterally extending the time for the completion of stipulated work because the time for performance of contract can only be extended with the consent of both parties. On the other hand relying on section 63 of the Contract Act it was urged on behalf of the respondent that the Government was within its right to extend time for performance in its own discretion and keep the contract subsisting, albeit to the benefit of both parties. In Abdul Jalil Chaudhary v. Muhammadi Steamship Company Limited (P L D 1961 S C 340) this Court expressed the view that time for performance of a contract is liable to be extended by the promisee as provided by section 63 and this section does not expressly provide that the consent of the promisor is needed for such extension, but "that is obviously essential for if the promisor was not prepared to give performance at all any extension would be meaningless." Having regard to this dictum, it is apparent that when admittedly the appellant informed the Executive Engineer on 12th August 1984, that be had no further interest to work as a contractor anymore any further extension for performance unilaterally granted by the Government would be meaningless. For all intents and purposes the contract stood repudiated on the aforesaid date and the appellant ceased to have any further interest in the contract. This is also borne out from the fact that he did not do any work beyond this date and precisely for this reason the final recission, of the contract also proceeded on the basis that he had abandoned the work. I would, therefore, allow this appeal and set aside the order of Election Tribunal.

ORDER OF THE COURT

In view of the opinion of the majority his appeal is allowed and the decision of the Election Tribunal dated 8‑10‑1985 is set aside, with the result that the Election Petition filed by the respondent stands dismissed. The parties, however, are left to bear their own costs.

M. B. A. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.

🔍 Find a Lawyer